R Thomas George CLARKE v Secretary of State for Transport Local Government and The REGIONS/
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUXTON,LORD JUSTICE LAWS,MR JUSTICE DOUGLAS BROWN |
| Judgment Date | 20 May 2002 |
| Neutral Citation | [2002] EWCA Civ 819 |
| Date | 20 May 2002 |
| Court | Court of Appeal (Civil Division) |
[2002] EWCA Civ 819
Lord Justice Buxton
Lord Justice Laws and
Mr Justice Douglas Brown
IN THE SUPREME COURT OF JUDICATURE C/2001/2506
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
(MR JUSTICE BURTON)
MR R GROUND (instructed by Legal Services, Tunbridge Wells Borough Council, Kent TN1 1RS) appeared on behalf of the Appellant
MR M WILLERS (instructed by Bramwell Browne Odedra, Chesham Bucks HP5 1EG) appeared on behalf of the Respondent
Monday, 20th May 2002
This is an appeal from a decision of Burton J given on 9th October 2001 in a planning matter. The planning dispute appears to have been of somewhat lengthy nature, and was between the Tunbridge Wells Borough Council ("the Council"), who are the appellants here, and a Mr Thomas Clarke and his wife. Mr and Mrs Clarke are (and I use this term purely for purposes of identification at the moment) gypsies. The planning authority seeks to enforce planning regulations and rules against them in respect of their stationing of a mobile home in an area that in normal circumstances would not be, and properly would not be, regarded as appropriate for such accommodation.
The matter has been before inspectors on at least two occasions. The matter in contention before Burton J was an appeal decision by one of her Majesty's Inspectors given on 28th March 2001 of an appeal by Mr and Mrs Clarke against a refusal to grant planning permission, the development proposed being the continued use of the land in question the stationing of the caravan for residential use by the Clarke family. The Inspector was conscious that he had to give consideration, not only to what I would call normal planning considerations, but also to the rights of the appellant and his family under Article 8 of the European Convention on Human Rights; and also potentially under Article 14 thereof. He dismissed the appeal in terms to which we will come.
Burton J in a detailed and, if I may be permitted to say so, helpful judgment reviewed in considerable detail not only the Inspector's determination, but also the implications for the gypsy and Romany culture of the claims made by Mr Clarke. He concluded in paragraph 44 of his judgment that the Inspector's decision had to be quashed and be remitted to him because of inadequate reasoning. It is important to note that it was for that reason, and no other, that Burton J quashed the decision.
In considering the very difficult question of how the potential family and cultural rights of gypsy and Romany populations interact with and are affected by the municipal planning laws of this country, clear guidance has been given very recently by the Strasbourg Court in the case of Chapman v United Kingdom 10 HBRC at 48. In that judgment, starting at paragraph 90, the court sets out the jurisprudence and learning in Convention terms in respect of gypsy population. In paragraph 97 attention was drawn to the fact that the number of sites that gypsies can find acceptable, because they find it disagreeable (as the court put it) to live in a house, is limited; and their opportunity for living in accordance with their traditional ways and within the planning regime is thus restricted. The court then said this at paragraphs 98 and 99.
"98. The court does not, however, accept the argument that, because statistically is greater than the number of places available in authorised gypsy sites, the decision not to allow the applicant gypsy family to occupy land where they wished in order to install their caravan in itself, and without more, constituted a violation of art. 8. This would be tantamount to imposing on the United Kingdom, as on all the other contracting states, an obligation by virtue of art. 8 to make available to the gypsy community an adequate number of suitably equipped sites. The court is not convinced, despite the undoubted evolution that has taken place in both international law, as evidenced by the framework convention, and domestic legislations in regard to protection of minorities, that art. 8 can be interpreted to involve such a far-reaching positive obligation of general social policy being imposed on states.
99. It is important to recall that art. 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the court acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the contracting states many persons who have no home. Whether the state provides funds to enable everyone to have a home is a matter for political not judicial decision."
What was engaged in this case, therefore, as would be engaged in any planning decision that has to confront the extremely difficult problems that I have already indicated, was on the one hand the nature of the Clarkes' desire and wish to continue living in a caravan and their opposition to living in a conventional home; and on the other hand the obligation of the local authority properly to apply and enforce planning control.
The reason why there has to be close scrutiny of the reasons given by applicants for opposing conventional housing is that it is necessary to form a view, as best the court can, of whether those reasons are personal to themselves, however intense they may be; or whether they go further and are based on a belief or understanding or integral part of their cultural identity as gypsies or Romanies.
The Inspector, having looked at the site and considered that in purely planning terms it would be intrusive both in visual and in land use terms, went on to consider the personal circumstances of the Clarkes, as he properly needed to do. He set out his findings in that respect in paragraphs 17 to 21 of his decision letter. Since those findings are of some importance in the light of the judge's judgement I will set them out verbatim:
"17. The appellant rightly points out that national policy continues to favour private gypsy sites and that no new council sites have been provided since 1992. In the country as whole, there are no vacancies on official sites while the existing private sites in the district tend to be small and generally occupied by single families. On the other hand, in January 2000, there were 112 unauthorised sites of which six were in Tunbridge Wells and there is therefore a clear need for additional provision. It should also be recognised that a very high proportion of the district's land is protected which, if the urban areas are added, leaves few options available. The difficulties are further aggravated by the fact that the Council's Policy H5 is criteria based and, contrary to current national advice (PPG 3 and PPG 12), it does not identify locations that would be suitable for gypsy sites.
18. The appellant argues that his personal...
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